United States District Court, D. Arizona
Douglas L. Rayes United States District Judge.
the Court is the Report and Recommendation
(“R&R”) of Magistrate Judge Eileen S. Willett
(Doc. 22) regarding Petitioner's Amended Petition for
Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254
(Doc. 10). The R&R recommends that the Amended Petition
be denied and dismissed with prejudice. The Magistrate Judge
advised the parties that they had fourteen days from the date
of service of a copy of the R&R to file specific written
objections with the Court. (Doc. 22 at 10.) Petitioner filed
an objection to the R&R on October 17, 2019 (Doc. 26) and
Respondents filed their response on October 22, 2019 (Doc.
Court has considered the objections and reviewed the R&R
de novo. See Fed. R. Civ. P. 72(b); 28
U.S.C. § 636(b)(1). The Magistrate Judge correctly found
that the Petitioner's claims are procedurally defaulted
because Petitioner failed to exhaust available state
remedies. Grounds One, Two, and Three (challenges to the
effectiveness of Petitioner's trial counsel during
sentencing) are claims that must be raised in a state
petition for post-conviction relief (“PCR”). As
correctly explained in the R&R, Petitioner failed to
raise those claims in his state PCR and is unable to timely
file a second PCR in state court raising those grounds.
See Ariz. R. Crim. P. 32.1 and 32.4.
Four (a constitutional challenge to Petitioner's
sentence) is a claim that must be raised in the Arizona Court
of Appeals. Petitioner did not present the claim stated in
Ground Four to the Arizona Court of Appeals. The R&R
correctly explained that the Petitioner is precluded from
raising this claim in state court because the time for appeal
has expired and a second PCR would fail because Ground Four
is a claim that Petitioner could have raised and adjudicated
on direct appeal. Ariz. R. Crim. P. 32.2(a)(3).
objection, Petitioner argues that, contrary to the findings
of the R&R, he raised in a PCR the claims of ineffective
assistance of counsel now raised in his Amended Petition. He
claims he filed a PCR raising these issues on August 23,
2018. However, there is no PCR in the record filed on August
23, 2018, and no PCR filed any time near that date. In his
Amended Petition, Petitioner references only one PCR. That is
the same, and only, PCR found in the record-the PCR dismissed
by the state trial court on August 21, 2017. There is no
mention in the record or in the Amended Petition of a PCR
filed on August 23, 2018.
however, that PCR had been filed, the claims in the PCR
described by Petitioner in his objection are different than
the claims made in his Amended Petition. He describes his
alleged August 23, 2018 PCR as raising claims of ineffective
assistance of PCR counsel, not trial counsel or appellate
counsel, as alleged here. Even if there were a constitutional
right to competent PCR counsel,  ineffective assistance of
PCR counsel is not a claim alleged in any ground raised in
the Amended Petition. Petitioner may not raise new grounds
for relief for the first time in an objection to an R&R.
objection to the R&R does not establish that he exhausted
his available state remedies. The R&R correctly decided
that Petitioner's habeas claims are procedurally
defaulted. The Court therefore accepts the recommended
decision within the meaning of Federal Rule of Civil
Procedure 72(b) and overrules Petitioner's objections.
See 28 U.S.C. § 636(b)(1)
IS ORDERED that the R&R (Doc.22) is
ACCEPTED. A Certificate of Appealability and
leave to proceed in forma pauperis on appeal are
DENIED because the dismissal of the Petition
is justified by a plain procedural bar and reasonable jurists
would not find the ruling debatable, and because Petitioner
has not made a substantial showing of the denial of a
constitutional right. The Clerk of the Court shall enter
judgment denying and dismissing Petitioner's Amended
Petition for Writ of Habeas Corpus filed pursuant to 28
U.S.C. § 2254 (Doc. 10) with prejudice and shall
terminate this action.
 Although there is yet no recognized
right to counsel in PCR proceedings, in Martinez v.
Ryan, 132 S.Ct. 1309 (2012), the Supreme Court noted
that when PCR proceedings are the defendant's first
opportunity to challenge the ineffective assistance of trial
counsel, as they are in Arizona, they amount to the
defendant's only appeal on such a claim. The Supreme
Court recognized a narrow equitable exception under which
ineffective assistance of PCR counsel may establish cause for
the procedural default of an ineffective assistance of trial
counsel claim, ...